August 23, 2003

When I originally posted (Fox News Network is a bunch of wusses, 11 August 03) about the Fox News Network’s lawsuit against Al Franken’s new book, Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right, I had a question. FNN’s brief had said Franken and his publisher’s

…intent is clear - to exploit Fox News’ trademark, confuse the public as to the origins of the book and, accordingly, boost sales of the book.

What I wanted to know was whether Fox’s lawyers actually managed to keep from giggling when they said that.
The good news yesterday was that a federal judge has denied Fox’s request for an injunction. And this morning’s coverage in the New York Times comes very close to answering my question. Fox’s lawyers have got to be experts at keeping a straight face, because it appears that yesterday they were the only people in the courtroom who weren’t laughing.

A federal judge in Manhattan told Fox News yesterday that it had to learn how to take a joke. Then he rejected the network’s request for an injunction to block the satirist Al Franken from using the words “fair and balanced” on the cover of his book, Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.

Calling the motion “wholly without merit, both factually and legally,” the judge, Denny Chin of United States District Court, said that a person would have to be “completely dense” not to realize the cover was a joke, and that trademark protection for the phrase “Fair and Balanced” was unrealistic because the words are so commonly used.

Lawyers for Mr. Franken and his publisher, Penguin Group (USA), called the ruling a victory for the First Amendment. Mr. Franken was not in court.

“I never really had any doubt,” he said in a telephone interview, calling the ruling “a victory for satirists everywhere, even the bad ones. In addition to thanking my own lawyers, I’d like to thank Fox’s lawyers for filing one of the stupidest briefs I’ve ever seen in my life.”

The Fox court papers had referred to Mr. Franken, a former “Saturday Night Live” writer and performer and an unabashed liberal, as a “parasite” who appeared shrill, unstable and “increasingly unfunny.” …

The network filed for the injunction on Aug. 11. Fox News Network trademarked the phrase “Fair and Balanced” in 1998 to describe its news coverage, and network lawyers claimed that Mr. Franken’s use of the phrase in his book would “blur and tarnish” it. Fox also objected to the use of a picture of Bill O’Reilly, one of its prominent news personalities, on the cover, claiming that it could be mistaken as an endorsement of the book.

But these arguments were met by laughter in the crowded courtroom, as Fox tried to defend its signature slogan. Part of the network’s burden was to prove that Mr. Franken’s use of the phrase “fair and balanced” would lead to consumer confusion.

One round of laughter was prompted when Judge Chin asked, “Do you think that the reasonable consumer, seeing the word `lies’ over Mr. O’Reilly’s face, would believe Mr. O’Reilly is endorsing this book?”

The giggling continued as Dori Ann Hanswirth, a lawyer for Fox, replied, “To me, it’s quite ambiguous as to what the message is here.” She continued, “It does not say `parody’ or `satire.’”

Thus proving that she’s either lying, or is thick as two short planks. Either way, I wouldn’t want her on my side.

Ms. Hanswirth said Fox’s “signature slogan” was also blurred, because people who were not associated with the network, which owns the Fox News Channel, also appear on the cover with Mr. O’Reilly.

Judge Chin said, “The president and the vice president are also on the cover. Is someone going to consider that they are affiliated with Fox?”

The courtroom broke into laughter again.

Ms. Hanswirth replied, “It’s more blurring, your honor.”

After more discussion about what was and what was not satire, and about the definition of “parody,” Judge Chin decided that Mr. Franken’s work was of “artistic value.”

“Parody is a form of artistic expression protected by the First Amendment,” he said. “The keystone to parody is imitation. In using the mark, Mr. Franken is clearly mocking Fox.”

He said Mr. Franken’s work was “fair criticism.”

Judge Chin said the case was an easy one, and chided Fox for bringing its complaint to court. The judge said, “Of course, it is ironic that a media company that should be fighting for the First Amendment is trying to undermine it.”

Just to run through the basics again, if you haven’t been following the story:

1. Fox filed this ridiculous suit against Al Franken and the Penguin Group.
2. Yes, “Al Franken and the Penguin Group” would make a good name for a rock band.
3. The news met with general derision.
4. As did Fox’s claim that it owns the phrase “fair & balanced”.
5. Ditto, its claim that the general public associates “fair & balanced” with Fox News.
6. Ditto, its claim that Penguin thinks it would sell more books if it associated itself with the Fox News Network.
6a. (Hoo boy. Pull the other one.)
7. Ditto, its claim that Franken’s use of the phrase was not legally permissible satire or parody.
8. Which inspired lots and lots and lots of derision.
9. Whereupon the advance orders caused Franken’s as-yet-unpublished book to hit #1 in Amazon’s ratings.

For a less humorous take on Fox’s lawsuit, see yesterday’s post in John Savage’s Surreality Check. The pseudonymous John Savage is a lawyer who specializes in publishing and intellectual property issues. He is definitely not amused, and thinks the lawyers who brought the lawsuit should get smacked hard for violating professional ethics.

It’s widely believed that what’s actually motivating Fox’s lawsuit is Bill O’Reilly’s fury over Franken’s having publicly outed him as a liar. O’Reilly had repeatedly claimed that Inside Edition had received the prestigious Peabody Award. It hadn’t. Franken said so during a panel at Book Expo America 2003, which is the big annual gathering of independent booksellers. The other two panelists were Bill O’Reilly and Molly Ivins. The panel was broadcast on C-SPAN’s Book TV. Here’s a chunk of Buzzflash’s interview with Franken:

BUZZFLASH: On May 31, your appearance at a book exposition with co-panelists Molly Ivins and Bill O’Reilly was broadcast on C-SPAN’s Book TV. At the event, you confronted O’Reilly about his lie that that he received the prestigious Peabody Award for his work as host of Inside Edition. Could you recap the story — which is kind of funny when you think about it, lying about an award that honors outstanding achievement in broadcast journalism.

AL FRANKEN: Well, it isn’t just that Bill O’Reilly claims he won a couple of Peabody Awards. Whenever he was asked about Inside Edition and it being sort of a tabloid show, O’Reilly would indignantly say that they had won two Peabody Awards. Who says we’re a tabloid show? And O’Reilly would offer as proof the Peabody Awards that Inside Edition had supposedly won. And he did this on a number of occasions. I got through watching him once on C-SPAN and then went researching on Nexis. I just followed it up because I couldn’t believe that Inside Edition had won a Peabody. And I did the research. And, of course, they hadn’t won any Peabody Award. I thought I would call O’Reilly, and that way he could stop saying the wrong thing, which any journalist would be embarrassed about. Instead of being grateful that I had called him, he just got angry. Well it turns out that Inside Edition had won a “Polk” Award a year after he left. And so he got very, very angry and said, “Go ahead – go after me, Al.” And so I just thought that it’d be fun to do.

I gave the story to Lloyd Grove at the Washington Post, who called O’Reilly. O’Reilly sort of said, “Well, all I did was mix up a Polk and a Peabody, and Al has this jihad against me,” et cetera. Now that’s not necessarily worth writing about, but then I discovered that about a week later Robert Reno at Newsday decided to do a column about the fact that O’Reilly had claimed on several occasions to have won Peabodies and hadn’t.

O’Reilly then attacked Rob Reno in the most vitriolic way, saying, basically “I never said I won a Peabody. This is a total fabrication. The man’s a liar,” et cetera, et cetera. And that sort of seems pathological to me, or Bill O’Reilly just felt that he could get away with it. It’s sort of emblematic of him.

Read more about it at Buzzflash. They say they have a video clip of the Book Expo incident, but so far I haven’t been able to get it to play for me.

So that’s the story. Judge Chin’s unambiguous dismissal of Fox’s request for an injunction isn’t the end of the case, but it significantly decreases Fox’s chances of getting an outcome they’d consider satisfactory.

As I said yesterday: Neener-neener.

Addendum: The CNN.com version of the story amplifies and expands on the Times story without contradicting it. Some especially good bits:

Fox objected especially to its cover, which displays the “fair and balanced” phrase in its subtitle and an unflattering photograph of the news channel’s most popular host, Bill O’Reilly. It argued that the cover layout “is likely to cause confusion among consumers as to the origin and sponsorship of the book.”

The judge disagreed. “There is no likelihood of confusion as to the origin and sponsorship of the book … or that consumers will be misled that Fox or Mr. O’Reilly are sponsors of the book,” he said.

During oral arguments, Chin brought up one of O’Reilly’s books, “The Good, the Bad and the Completely Ridiculous in American Life” as an example of a similar play on a well-known phrase — in this case, the title of a Clint Eastwood movie, “The Good, the Bad and the Ugly.”

“Isn’t Mr. O’Reilly doing exactly the same thing?” Chin asked.

Attorney Dori Hanswirth, representing Fox News, disagreed, saying the intent was different. She contended that Franken’s book cover did not qualify as satire. “This is much too subtle to be considered a parody,” she said.

Responding to a comment by Franken that he intended the cover to be a joke, she told the judge that she thought the cover’s message was “ambiguous,” and called it “a deadly serious cover, and it’s using the trademark of Fox News to sell itself.”

Floyd Abrams, representing Franken, said that under the First Amendment, “a book is allowed to criticize a holder of a trademark and mock a trademark as well.” Abrams said the big word “lies” over the photo was a signal that the cover was “obviously tongue-in-cheek.”

“There is no way a person not completely dense would be confused by this cover to think that Fox is accusing Bill O’Reilly of being a liar,” he said. “There is nothing confusing about this.” …

Fox alleged the cover also tarnished it by association with defendant Franken. Although Franken has appeared as a guest on Fox News Channel at least 10 times in the past five years, according to Fox, he is not affiliated with the network, which, in court papers, called his commentary “not good enough to be endorsed by Fox News.”

Franken, who won four Emmy awards for his work on “Saturday Night Live,” is the author of four previous books, including the recent bestseller, “Rush Limbaugh is a Big Fat Idiot.” Presale orders of “Lies” first drove it to the top sales position at the online bookseller Amazon.com.

Far be it for me to defend Fox News, but there is an alternative explanation for this lawsuit.

As I understand it, in order to keep a trademark in US law, you have to prove that you have tried to defend it. What that often means is that when someone else uses a trademark, companies feel that they have to file lawsuits, even lawsuits that they know to be without merit and expect to lose, just because they need to show that they have tried to defend the trademark. If they didn't sue every time, some future use of "Fair and Balanced" that did violate their trademark might get thrown out of court on the grounds that Fox hadn't tried to keep Franken from using it.

It's stupid, but it is just possible that it isn't Fox' stupidtiy that's the problem this time.

One does wonder, then, why they waited ten weeks from first learning of the book's existance (the now infamous Franken vs. O'Reilly meltdown) to file the lawsuit. What were they waiting on? Trying to figure out how to keep a straight face? Prompt defense of trademark, I believe, is considered a part of the game, never mind the fact that the ruling judge didn't think it was trademarkable in the first place.

Naw, Scott. They're being stupid. Vindictive, too -- the filing was full of bizarre gratuitous swipes at Franken.

One of the authors' organizations has filed -- what, an amicus brief? something like that? -- that among other things, points out the very large number of published books that use one or another trademarked phrase in their titles, including Cory Doctorow's Down and Out in the Magic Kingdom.

The question of defending a trademark was thrashed out at some length in the previous comment threads, if you're interested. I can't say the issue was settled, but it got a good workout.

I'm glad the judge mentioned the weakness of their claim on "fair & balanced". He was being polite. "Fair and balanced" is part of the basic terminology of journalism.

Ah well, I suppose that's what I get for jumping into a topic midway. I figured Fox was awful for wholly different reasons, so I'm quite happy to see my existing enimity reinforced despite my initial reservations to blame them for this.

I was able to view the video clip of the Book Expo thing with Mozilla Firebird and an old version of RealPlayer. It is, in fact, the hour-and-a-half long entire panel discussion, apparently a "upcoming political books" thing. They've got Molly Ivins, Bill O'Reilly, and Al Franken, (who talk in that order) and "moderating" is Pat Schroeder. For those who can play the clip and are interested in the "good bits" version, relevant times to look at are:

20:05 -- Bill talks about how he takes on the demagogues and doesn't call anyone a liar, or "big fat". He's interested in "elevating the discourse", which is amusing, since 20 minutes later he's shouting at Al to "shut up!"

22:50 -- Bill talks about the left's "hysteria" on the WMDs, and speaks of people blinded by ideology. Not technically relevant to the Bill-Al incident, but it stuck out for me.

40:30 -- Al starts the story of how Bill attacked Rob Reno to try to cover his lies about the Peabody

48:25 -- Bill goes for him, verbally

51:05 -- Molly Ivins comes in against Bill, in her demure Texan way, and suggests that the Peabody thing is the sort of thing that merited a retraction

52:30 -- Molly has a nice bit about being against the war on Iraq because she loves America, which is also not relevant to this particular post, but it was very nice

1:02:50 -- Bill denigrates Al's understanding of politics; they get in a spat over Bill's claims that he worked himself up from a poor background

1:13:20 -- Another nasty Bill-Al fight in which Bill calls Al a propagandist

1:16:45 -- Al grinningly mentions that it would help sales if Bill talked about Al's book on his show

1:21:10 -- In answer to a question, Bill talks about how he's not in the business of bringing people together to come to agreement about politics and how to move things forward; he's there because they need people to rattle cages and be a watchdog.

Really, it's exceedingly amusing to see what a hypocritical blind bastard Bill O'Reilly is; and I'm saying this as someone whose previous exposure to any of the people on this panel was solely from reading the occasional Ivins column. It's not a clip for the weak of stomach, though. It's a live flame war. Al trolls Bill, Bill's response is that of a complete *sshole.

I'd say, yes, based on this evidence, Bill's hand was all over the brief.

I looked at Scott's comment more in the way of "Now Fox can say it defended its trademark" should someone want to yank the trademark. Not that "defense of trademark" was a valid reason for why they filed the suit.

While trying to find more fun articles about the C-SPAN spat (I was very curious to see what quotes did and didn't make it into various papers), I found this article about Franken lying to Ashcroft. The author clearly has a problem with Franken, but I just found it interesting to see an article accusing Franken lying about something unrelated to the Fox business. Did anyone hear about this?

One big difference is that Franken admitted he was wrong and apologized. O'Reilly keeps saying that he only made a small mistake and lashes out at Franken every chance he gets. And I'm kind of suspicious about where Malkin goes with her information -- she sets up a straw man of what she thinks Franken is going to say in his book and then demolishes it. Not particularly responsible journalism on her part, now is it? Maybe she's miffed because she did (or didn't) get mentioned in Franken's book?

I heard about the Franken/Ashcroft incident, and read the exhibits on The Smoking Gun. Didn't seem like a big deal. Then Malkin decided to make it a crusade. Good columnist! Here's your biscuit. She's always trying to stir up outrage over some molehill or other, though usually it involves evil immigrants sneaking into our fair country.

I watched the Franken/O'Reilly/Ivins/et al clip, and one of my favorite moments was Al holding up the cover of his book and saying something like, 'This is just a rough. Bill, we could use a better picture of you than this public domain shot. Do you have one we could use? Preferably with your mouth open.'

"Defending a trademark" need not mean filing suit. Had Fox merely vociferously objected to the choice of title, in writing, that would almost certainly have constituted defending the mark for purposes of determining abandonment. It would also have been much cheaper, and completely out of character for the law firm that represented Fox. Hogan & Hartson is not well known for advocating low-cost means of resolving disputes. I have had no personal dealings with the specific counsel involved. Yet (there is something brewing, and it's not coffee).

The Fox lawyer's comment 93It92s more blurring, your honor,94 illustrates a major mechanism that Fox News (and the entire Bush roadshow) use to continue their exploitation and destruction of the public trust.

Judge Chin wasn't having any of it -- but Fox & etc., bank on the fact that a sufficient number of people will give the benefit of the doubt to skilled liars -- "authority figures" who represent themselves as experts and hand off simplified, distorted aphorisms.

Bush tells the public that we have to save the national forests by cutting down lots of trees. OK, the average recipient of this news isn't an ecology scholar with a degree in wilderness management. It's common sense that a fire is more likely to spread in an area that has more trees per square acre than in a less densely-wooded area. So maybe reducing the number of trees makes sense, right? "Who's to say?"

Well, obviously, all the people who have 20-year careers in Forest Management might have something to say about it. But, in this case, it's Bush and Fox News, not Judge Chin, who are presiding over the courtroom. The forest management guys are reduced to muttering under their breath and buttonholing stray reporters in the street.

I guess my point in belaboring the obvious is just that in the larger "courtroom" that's trying the Bush case, there is no Judge Chin. It's a jury trial.

And all of us have the responsibility of being the articulate-but-objective prosecuting attorneys. (This may be a tougher job than the metaphor makes it appear to be. I worry about it a lot.)

I don't see a qualitative difference between Franken's writing to Ashcroft and Don Novello pretending to be "Lazlo Toth" when he wrote to Nixon and McDonald's, but as said, at least Franken apologized (or, as the unbiased columnist reports it, "sniveled") when recognizing that perhaps misrepresenting another organization's endorsement was perhaps crossing the line.

I guess it's a sign of the times that Lazlo Toth, to my recollection, never got raked over the coals like this.

Hogan & Hartson can be an extremely effective firm. However, IMNSHO its firm culture makes it completely inappropriate for anything other than defense when total war has already been declared. In those circumstances, it has a good reputation for getting results. However, since it's usually insurance-company-paid defense, the cost of that defense is seldom considered. As a plaintiffs' counsel (individual authors usually aren't defendants...), I do not believe that the firm culture is oriented toward problem-solving. For these reasons, Fox got what it paid for.

As Marty Schwimmer said in his highly recommended Trademark Blog, as lawyers we have a responsibility to lay out the potential rewards and the potential risks for our clients. That is just not something that most large firms that live on insurance defense money are emotionally and/or culturally equipped to do. OTOH, I am not equipped to engage in decades-long scorched-earth litigation... because something that Marty did not say is that even after we lay out the risks and rewards for our clients, it is still the client's choice whether to proceed. See Rule of Professional Conduct 1.2(a).

I believe you are thinking of [i]Wolff & Byrd[/i] there (currently being published in comic book form as [i]Supernatural Law[/i]). "Wolfram & Hart" is the name of the demonic law firm from TV's [i]Angel[/i].

She spat the toothpaste out of her mouth. Her eyes were blazing, and there was a white froth on her chin; she looked horribly rabid. "You're a lawyer, I'm a vampire. There is such a thing as professional courtesy."